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Sex, Laws and Legal Tape

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Gender Equality
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Background

The women’s conference in Beijing in 1995 emphasised that what was needed in law making bodies was enough women to have an impact (not just two or three or six), to show that women could really make an effective contribution to public affairs. It popularised the idea that one-third women (33%) should be enough.

Kenyan women picked up the Beijing ball, and ran with it. In 1997 there was an effort to get the law changed to require parties to have at least one-third women candidates. No law was passed, but the failure spurred the establishment of the Women’s Political Caucus who “rejected the role of merely saying prayers, making tea and dancing for politicians during meetings”, as two authors put it.

In the past, there have not been many women in Kenya’s Parliament. Before 2010, there were 222 MPs: 210 for constituencies and 12 “nominated”. The latter were chosen by parties after the election results were in, and were supposed to be the voice of groups with inadequate representation, including women. For example, in 2007 sixteen women were elected for constituencies, and six nominated – just 10%. One woman elected in a by-election in 2008 brought the total up to 11%.

Now we have 349 MPs and 67 senators. Not more than two-thirds men would mean 117 women in the National Assembly and 23 in the Senate.

At the end of the 1990s, FIDA Kenya (International Federation of Women Lawyers) argued that under a new Constitution 30% of the seats in Parliament should be reserved for women. In fact, they said, law should reserve one-third of the seats in all public bodies for women. (Of course, 30% is not one third. In our current National Assembly of 349 members, the difference between the two is eleven).

Making a constitution

In 2001 the first official body to work on a new constitution started work: the Constitution of Kenya Review Commission (usually called the CKRC). The Act of Parliament setting it up said its task included gender equity. Seven CKRC members were women— 26% of the regular members, not the 50% that FIDA had demanded, or even one third. But they included formidable women such as Phoebe Asiyo who had entered Parliament in 1979 (one of only three women), Nancy Baraza, former chair of FIDA, Professor Wanjiku Kabira, founding secretary of the Women’s Political Caucus, and Salome Muigai, gender and disability activist.

“One-third women” became “not more than two-thirds of either gender” at the Bomas conference. Of course it is logical, but the language reflects the male fight-back against women’s demands.

Between 2002 and 2010, there were about eight versions of a new Constitution. All talked about the need to have one third women or “not more than two thirds of either gender”. The CKRC proposed an electoral system that would have guaranteed that at least 45 members out of a house of 300 (15%) were women. National Constitutional Conference at Bomas in 2003-4 replaced this with something quite like the current system: this could have produced 25% women in the National Assembly (the percentage was not clear because, while it named each district/county and gave each a woman member, it left it to Parliament to fix the number of ordinary constituencies).

The idea of “topping-up” with extra women to ensure one third women in county assemblies was in draft constitutions ever since Bomas. But the second draft by the Committee of Experts (CoE) included the same system for the National Assembly and the Senate as well as the county assemblies. The Parliamentary Select Committee that reviewed the draft in early 2010 removed this except for county assemblies. This is important because this is the system that Parliament was most recently discussing.

Incidentally, “one third women” became “not more than two thirds of either gender” at Bomas (let’s call this principle “not>⅔” for short). Of course it is logical, but the language reflects the male fight-back against women’s demands. However, women have sometimes found it useful in argument: not more than two-thirds, they say, means precisely that. There should be no “rounding” of numbers.

The 2010 Constitution

The Constitution seems to make making a clear commitment to not>⅔, particularly in elected bodies, with some provisions about “appointive bodies” (like the cabinet, commissions, the public service, judiciary and various boards and authorities). But it is not always really clear what has to be done, and how and when.

Only in county assemblies is not>⅔ totally guaranteed. After the ward election results are announced, and four seats assigned to parties to represent marginalised groups, including persons with disabilities and the youth, the question is: will more than two-thirds of the seats be occupied by men? If “Yes”, the Constitution provides that enough women must be selected to ensure not>⅔ are men. These extra women are taken from lists of candidates put forward by each party before the election. And the number of these extra members that each party gets depends on how many ward seats the parties have won.

On the Senate, the Constitution has rules making it much easier to achieve not>⅔, but not guaranteeing it. Senate must have 16 extra women and two women to represent persons with disability and marginalised groups. So there is a guarantee that just under 27% of the Senate will be women. If only five women are elected as county Senators, not>⅔ would be achieved. But in 2013 no woman was elected county Senator!

The Constitution takes us less far towards not>⅔ in the National Assembly. It does guarantee 47 seats for women—county women representatives. Though there are 12 seats for marginalised groups (often called “nominated”), there is no guarantee of how many will be women, though probably not less than four. Progress towards not>⅔ could be slow. To get there under the existing rules, 65 women would have to be elected for regular constituencies. In 2013 only 16 of those constituencies (just under 6%) elected women: a smaller percentage than in the 2007 elections. Providing specific seats for county women representatives tended to discourage parties from putting forward women for regular seats: they argued that “women have their special seats”.

“Promote” is not the same as “guarantee” or “ensure”.  Incentives, education and persuasion may be forms of promotion, but they do not guarantee representation.

The Constitution also clearly says “Not more than two-thirds of the members of any county executive committee shall be of the same gender” (Article 197). The Governor has a free hand in appointing executive members, so it should be easy to ensure that there are enough women. The same should be true of the President appointing the Cabinet.

Another possible approach is not to require certain behaviour, but provide an incentive – like money. Two early draft constitutions said that Parliament must pass law about how much political parties would get from the Political Parties Fund, and that one factor should be how many women candidates each party had got elected. But the Parliamentary Select Committee removed this, wanting Parliament to have a free hand in deciding how the Fund was used.

Article 81 does not say how the result is to be achieved: the electoral system must comply with several principles— including not>⅔ in elective public bodies. But what is a principle? Does it mean “This must happen and must happen now”, or “Later will do” or just “Make an effort”?

Article 27(8) is also important, and equally puzzling: the State must do what is necessary “to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.

Finally, Article 100 says that law “promoting” representation of women and disadvantaged groups must be passed within five years. “Promote” is not the same as “guarantee” or “ensure”. Incentives, education and persuasion may be forms of promotion. In fact, the most sensible meaning of Article 100 is that it is about something different from special rules, like at least one-third women. It is about ensuring that, over time, parties and people are encouraged and educated to accept women and disadvantaged groups as legislators.

After the Constitution

In 2013, the IEBC (Independent Electoral and Boundaries Commission) and the parties had no choice: there had to be 47 women county members of the National Assembly, and 12 extra members of the same body – taken from lists that had to alternate men and women (often called zebra lists); there had to be 18 extra women members of the Senate and top-up members of the county assemblies. Every county’s assembly has been “topped up” this way. So every county has one third women (no less —but also no more). Senate got just the guaranteed 27% women. The National Assembly had 19% women: 16 elected for constituencies, the 47 county women and 5 of the 12 extra members.

And most commissions and other public bodies have one-third women. The same is not always true of government executives: nationally or in the counties. Early on, a FIDA report found that only 16 of the county executives had as many as one third women.

Despite fine words about the Constitution and women’s rights, the Court of Appeal did almost nothing to move the Supreme Court towards not>⅔.

In short, appointers to bodies have usually done what they had to and no more—and sometimes not even that.

Most interest (in the media and in the courts) has been in not>⅔ in Parliament. So we shall look at that saga in detail. But first, the court cases about appointive bodies.

The Courts on “appointive bodies”

There have been two particularly important cases.

One, in 2011, was brought by FIDA about the composition of the Supreme Court, with two women and seven men (over 70% men). Despite fine words about the Constitution and women’s rights, the Court of Appeal did almost nothing to move the Supreme Court towards not>⅔. The Court of Appeal read 27(8) as though it demanded “progressive realisation” or gradual movement towards not>⅔, and did not create any immediate duty. But “progressive” is not there. To be fair to the Court of Appeal, teasing out the meaning of 27(8) is not easy.

And it said that the Judicial Service Commission—which selects the judges—did nothing wrong. It suggested that the JSC could do nothing until the government passed law or took some other measures to ensure not>⅔. But this ignores that Article 27(8) puts the duty on “the State” not just the government, and the JSC is part of the State. Indeed, because the JSC is an independent commission, there is very little the government or Parliament can do to tell it how to work.

In 2017, the issue came up again—brought by the National Gender and Equality Commission. Justice Chacha Mwita was happy to decide that two thirds of seven is five, leaving little room for requiring efforts to make the Supreme Court truly gender equal. He did not explain what the Constitution means when it says the JSC must promote gender equality.

In the second case, in 2017, the make-up of the cabinet was challenged. Justice Onguto held that Article 27(8) did apply to the cabinet, and had been violated because cabinet had more than two thirds men. However, because of the imminent election he said the cabinet did not have to be changed immediately, but a wrongly made-up cabinet after the election would be invalid. He did not accept the idea that this was a matter for progressive realisation.

Trying to get not>⅔ in Parliament

The IEBC

The IEBC and its predecessor the Interim Independent Election Commission did try to ensure not>⅔ in Parliament. An expert proposed a novel system: every candidate in a regular constituency would have to run on a “ticket” of a woman and a man. Voters would vote for the ticket not the individual. If a “ticket” won, usually the first name on the ticket—man or woman—would become the MP. But, after all results were in, if not enough women had seats, the women rather than the men from winning tickets would have been taken, until enough women were taken. The taking-the-women process would have begun with the tickets that had won, but the least resoundingly (by the smallest proportion of the votes cast). It wasn’t a perfect system—independent candidates particularly presented a problem. But it would have meant no-one had to give up the chance to stand because of their gender, and women would have had a chance to stand in every constituency, learn about campaigning etc. And it would not have needed a change in the Constitution.

But the IIEC preferred another system: grouping constituencies into fours, and designating one of each four as a “women only” constituency for one election. This could have been done without amending the Constitution. But the idea did not get past Cabinet. Men could not bear the idea of not being able to stand for “their” constituencies.

So in 2013 there was no mechanism to ensure not>⅔.

Enter the courts

The question of not>⅔ in Parliament went to court just before the 2013 elections; the case was brought by CREAW (Centre for Rights Education and Awareness). A majority of the Supreme Court decided that “principles” were not firm rules. And affirmative action, like special measures to get women into Parliament, was something to be achieved gradually. So Parliament with under 33% women would not be immediately unconstitutional. A bit like the FIDA case on the Supreme Court.

Because the JSC is an independent commission, there is very little the government or Parliament can do to tell it how to work.

Chief Justice Willy Mutunga disagreed. He would have insisted on the necessary law being passed then.

The Supreme Court majority seized on Article 100: about law “promoting” representation of women and disadvantaged groups. By 2015, the Court said, the law guaranteeing the gender quota must be in place. This is ingenious, if not perhaps what the drafters intended. But what the Supreme Court says is the law.

The Attorney-General

The Attorney General set up a Task Force. It considered various solutions including the two systems just mentioned, and others, most of which would have needed a change to the Constitution—except financial incentives to parties to strive for women to win their seats.

The MPs

Bills were introduced into Parliament to amend the Constitution to ensure not>⅔. The MPs just did not turn up in sufficient numbers to pass the Bills.

Parliament did amend the Political Parties Act to include a provision that says that 15% of the Political Parties Fund must be distributed to parties based on how many “special interest group” members were elected for the parties at the preceding general election. Women are among the “special interest groups”. This may not help much. Last time, only three parties got anything from the Fund. Even with recently changed rules for allocating the Fund, no more than four parties will get money from it after the 2017 elections if the pattern of seats won is like last time. Finally, though the Fund is not small, is it enough to persuade parties to change deep-seated prejudices?

The courts again

In 2015, Justice Mumbi Ngugi held, in another case brought by CREAW, that Parliament must pass the necessary law by the Supreme Court’s deadline. So Parliament extended the deadline. Soon after the National Assembly missed this new extended deadline, CREAW went back to court. Justice Mativo decided this case on March 29th 2017. He ruled that Parliament had failed to do what the Supreme Court had directed. He told them they had to do it by May 29th, otherwise anyone could apply to the Chief Justice asking for an order that Parliament should be dissolved (which means an election). This is because the Constitution says that if Parliament does not comply with a court order to make a law implementing the Constitution, anyone may apply to the Chief Justice. And the Chief Justice must ask the President to dissolve Parliament, and the President must do so.

Bills were introduced into Parliament to amend the Constitution to ensure not>⅔. The MPs just did not turn up in sufficient numbers to pass the Bills.

But changing the voting system is not the only way to get more women. One other court case suggested that one way is for parties to put forward enough women candidates, and for the IEBC should pressurise parties to do so. The court agreed. But the judge said that because time was short, he would not order this for 2017. But for next time the IEBC must take this approach. In fact, the IEBC has said that it has tried to do it this time, but it cannot force the parties.

This approach does have shortcomings: a party might nominate women as candidates for half its constituencies, but if these were constituencies the party was least likely to win, it might end up with well under one-third women members actually elected. However, last time, 15% of women ward MCA candidates got elected—the same as men. But a large number of (mostly male) independent candidates might also produce more male members.

Conclusion

We waited for Parliament. Could it push through a constitutional amendment in time? Might it try the women-only constituency system rule, or the two-name ticket approach—so avoiding constitutional amendment? But was there time before the election to do the necessary new nominations? Or would it fail to meet the court’s deadline?

Now we know: Parliament discussed amending the Constitution to introduce top-up seats for women. This has been their favourite approach because existing MPs wanted to hang on to their chances. It would have been the least complex system to administer so close to the elections. If it had been passed, and if the results were the same in terms of numbers of seats held by women as in 2013, to achieve not>⅔ the National Assembly would have had to have 73 top-up women—and a total of 422 members.

Anyway, Parliament failed. How hard did it try? On June 6th the National Assembly debated the Bill, but after that the members perhaps realised the effort was pointless—despite being on the House’s agenda repeatedly, nothing was done before they closed finally on June 15th. And it had not gone to Senate!

No-one seems to have gone to the Chief Justice. Probably everyone realised this would not have helped. There is already to be an election —less than two months after Justice Mativo’s deadline. And the IEBC is struggling to be ready by then.

But changing the voting system is not the only way to get more women. One other court case suggested that one way is for parties to put forward enough women candidates, and for the IEBC should pressurise parties to do so.

We have some time to rethink strategies, including whether we want an even more “bloated” National Assembly. And, let’s think about the position of women representatives. In the National Assembly only 16 were elected on the same basis as most men: competing in a constituency. The forty-seven county members have roles less well understood by the public, and with larger constituencies to manage; and five are list members with roles also less well understood. In the Senate: all have unclear roles, not representing counties, unlike most of the men. In the counties, most of the women are list members, without ward responsibilities or support, so again having a role that is not clear to everyone. Is this satisfactory? Do we want even more of these sorts of seats for women? However, many of these women have been active members. One indication may be how well women who have served as “nominated members” in the current Parliament or county assemblies are able to use that experience as a springboard to election for regular constituencies, wards, counties or even governorships.

A report says that this time, 11 women are standing for Governor (there were only six last time), and 42 for Senator (17 last time), but the picture is sketchy so far. However, a final thought: suppose—by a miracle—in August five women are elected Senator and 65 women are elected as constituency MPs, so neither house has more than two-thirds men. Would that not be a better solution? Would it be the end of the story?

The sting in the tail

Now for the bad (or worse) news: some have said that the new Parliament would also risk being dissolved if it fails to pass this law. But, the Constitution (it’s Article 261(8)) says that the period Parliament gets to pass a law begins again when the new Parliament begins its term. For Article100—the peg on which the Supreme Court hung its ruling in the CREAW case— the implementation period allowed is five years. No Parliament will last more than five years. So the CREAW case technique will never work again.

But the constitutional principles still apply. Article 100 is not an essential aspect of the achievement of the “not more than two thirds” rule. In his minority decision in the original CREAW case, Chief Justice Mutunga was clear that “any of the elected houses that violate this principle will be unconstitutional and the election of that house shall be null and void.” Will the courts agree?

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Jill Cottrell Ghai has been a Professor of Law at numerous universities, including Ife and Ahmadu Bello Universities in Nigeria, Warwick University and the University of Hong Kong. She also has extensive experience in advising on constitutions, including in Kenya, Nepal and Iraq.

Politics

The Extraordinary Journey of J. P. Magufuli and Comparative Perspectives of Dog-Eat-Man Regimes

Tanzania and Kenya represent two of the continent’s more closely matched territories. But the contrast between the two countries remains among the most intriguing examples of post-independence Africa’s political comparison.

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Magufuli’s Legacy: The Good, the Bad and the Ugly
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In 2015 John Pombe Magufuli became Tanzania’s accidental President. Colourful and charismatic, Magufuli charmed the masses during his five years in office. He demanded results and pulled off successes that were elevated to the status of minor miracles. He channeled his inner Julius Nyerere to revive Tanzania’s distinctive internal self-reliance-based identity.

The state was back, and the state was Magufuli. He used his campaign against the mabepari class to grandstand on a regular basis, and the coronavirus pandemic provided the former chemist with an opportunity to elevate his anti-imperialist credentials. His controversial stance won him approval across the region: several of my colleagues remarked that “Magufuli is the only African President to speak truth to the pandemic”.

Then his government ministers began getting sick. Magufuli disappeared from public view. After two weeks of rumour and speculation, Tanzania’s Vice President announced his passing due to a chronic heart condition. Corona or coronary? Magufuli’s outsized sending off soon overtook conjecture about the cause of his death.

It began with the usual laudatory speeches by his fellow African heads of state. The dead president then set off on a grand tour that took him across the country by land, sea, and air. The wananchi paid homage by throwing their clothes on the road in front of the motorcade escorting the casket. People lining the road chanted, “jeshi, jeshi!”

The lionisation of the dead president was a fascinating trope, amplified by the mellifluous High Swahili commentary accompanying the televised coverage of the Magufuli hegira. My wife had become a Samia Suluhu Hassan fan. She insisted that the TV remain tuned to the Tanzania Broadcasting Corporation channel.

The stature of Tanzania’s domestic Shujaa grew over the course of the week. Like the mythical wrestler Anteus, who grew stronger when he touched the ground, Hayati Rais appeared to be drawing new power from the landscape as the conquering hero’s body made the long journey from Zanzibar to Chato, his lakeside home.

By day three of the roadshow, Tanzania’s state media was praising the departed leader, as Jabali ya Africa, “the rock who stood up to the West”. But Twitter was providing an interesting counter-narrative; for Tanzania’s online opposition, the “Jabali” was “Jiwe”, the “stone” who terrorised his critics and pummeled the political opposition. Day four brought the claim by a Chama Cha Mapinduzi party sycophant that the Magufuli show was attracting an audience larger than that of the last two World Cups.

I was looking forward to seeing Chato, the village that during Magufuli’s tenure had been transformed along the lines of Houphouët-Boigny’s Yamoussoukro birthplace in Côte d’Ivoire, and Mobutu Sese Seko’s Gbadolite home in the Congo. I was not able to catch the end of the journey because of a close friend’s funeral. But I did witness the dead president’s final apotheosis, which led me to pause on my way out the door: “With due respect to our respective religions”, one of the TBC commentators was remarking, “it should be recognized that President Magufuli was a Nabii.”

The roadshow that followed was a skillfully executed event that provided the Bulldozer’s inner circle with the breathing room needed to ring-fence the new President.

Nabii is the Swahili term for prophet. The proof of his prophethood (unabii wake), the commentors went on to explain, lay in the fact that President Magufuli was the only world leader God sent to warn us that the pandemic is a crisis manufactured by the global elite to extend the hegemony of Big Pharma and other agents of the international capitalist order.

The real news for some of us was Vice President Samia Sulubu Hassan’s swearing in as the Republic’s sixth Head of State. Tanzania’s record of relatively seamless political succession was further enhanced by her status as a female Muslim from a minority community. My wife, who is from Lamu and has never seen anyone of her background in a position of power, declared, “Samia is my president.”

It is hard to envision a similar sequence occurring in Kenya, or for that matter in any other country in the Horn of Africa.

Dog eat dog versus man eat nothing

“No contrast, no information”, my field linguistics professor used to tell us. The large number of African states and the interesting dyads they form makes for a lot of information. Nigeria and Ghana, Mozambique and Angola, Egypt and Sudan, Guinea and Sierra Leone, are examples that come to mind. But the Kenya-Tanzania contrast remains among the most intriguing examples of post-independence Africa’s political comparison.

Tanzania and Kenya represent two of the continent’s more closely matched territories. They are linked by centuries of interaction on the coastal strip and a common history that gave rise to Swahili as the region’s lingua franca. Together they host the world’s most famous concentration of wildlife. Artificially divided into two countries by European powers, the modern nations created by imperial intervention were shaped by the same colonial model. Both gained independence under leaders inspired by the spirit of Pan-Africanism.

Tanzania’s record of relatively seamless political succession was furtherenhanced by her status as a female Muslim from a minority community.

Tanzania’s more uniform geography supported the intricately networked small-scale societal adaptations documented in Kjekjus’s classic study, Ecology Control and Environmental Management in East Africa. Kenya’s physical environment conditioned the country’s more complex ethno-economic composition diversity; late precolonial era migrations contributed to Kenya’s more variegated population of Bantu-, Nilotic-, and Cushitic-speaking communities.

Where the harshness of the German occupation in Tanzania inoculated the population with a healthy dose of anti-colonial consciousness, many Kenyan communities welcomed the Pax Britannica, in part due to the disruptions of the decade preceding it. Efforts to force peasants to cultivate cotton for export in Tanzania triggered the Maji Maji rebellion in 1905, and the movement rapidly spread across southern and parts of central Tanganyika until its brutal suppression.

The commercial economy introduced by Kenya’s colonial rulers created new opportunities and avenues for accumulation. The first stirrings of anti-colonial opposition only emerged after World War II. The ethnic base of the Mau Mau insurgency contrasted with the nationalist focus of Tanzania’s liberation politics. The new countries nevertheless came into existence driven by a common vision of the future and its possibilities.

It was a time of idealism and political experimentation. Shared orientations propelled Kenya, Tanzania, and Uganda to form the East African Community soon after independence. The union represented a practical first step towards Kwame Nkrumah’s vision of a United States of Africa—before political liberation gave way to an era of competing ideologies, superpower patronage, and military coups. Much of the ideological superstructure of that period ended up either dissipating gradually or collapsing for reasons that have been rigorously documented.

Technically, both Kenya and Tanzania subscribed to the third path option championed by the non-aligned movement, but their economies were moving on diverging paths. The East African Community foundered, undermined by economic differentials fueled by Kenya’s colonial economic legacy and Tanzania’s Fabian socialism. The ideological bifurcation saw Kenya and Tanzania become proxies for the struggle between the world’s capitalist and socialist systems.

The clash between Jomo Kenyatta’s conservatism and Julius Nyerere’s idealism highlighted their contrasting political ideologies and the external support they attracted. In 1975 the submerged tensions between the two countries surfaced in an exchange of words between Tanzania’s President Julius Nyerere and Kenya’s Attorney General, Charles Njonjo. Nyerere referred to Kenya as a “dog eat dog” society; Njonjo retorted by describing Tanzania as a “man eat nothing economy”.

The ideological bifurcation saw Kenya and Tanzania become proxies for the struggle between the world’s capitalist and socialist systems.

There is a simpler explanation. Where Kenya retained the hierarchical Anglo-colonial template after independence, Tanzania adopted the more integrative Swahili model of nation-building. As Jomo Kenyatta once told his fellow East African presidents after Milton Obote adopted the socialist Common Man’s Charter in Uganda, “I cannot experiment with [the] lives of my people.”

Donor-mandated structural adjustment policies of the 1990s brought the countries’ economies into closer alignment. But the different trajectories pursued by Kenya and Tanzania continued to reflect their contrasting developmental strategies, and the delicate balance of competition and cooperation defining the two countries’ bilateral relations.

Convergence revisited

Kenya and Tanzania’s ideological differentials are sufficient but not necessary explanations of the two nations’ post-independence divergence.

Crawford Young’s seminal work published in 1981, Ideology and Development in Africa, confirmed as much for the two decades following independence. Young concluded that the strong ideological groundings informing Africa’s capitalist, socialist, mixed, and Afro-Marxist economic models, although important, did not significantly influence their performance. This is consistent with historical studies that show how countries within a geographical region tend to converge over time.

This trajectory appears to hold for the comparison examined here. Tanzania has recorded impressive economic growth under the neoliberal policy regime. Although Kenya is still East Africa’s strongest economy with an annual GDP of US$37 billion versus Tanzania’s US$28 billion, Tanzania’s per capita GDP is now only US$200 less than Kenya’s (US$1,600 vs. US$1,400). Some 50 per cent of Kenya’s population is below the poverty line in contrast to 33 per cent in Tanzania, which also performs better in several categories of social development.

Tanzania was catching up to Kenya in the Transparency International annual corruption rankings until Tanzania’s position improved slightly after Magufuli took office. His anti-corruption campaign saw hundreds of civil servants lose their jobs, but only a few cases of prosecution. The offensive targeting international investors and domestic business interests took up the slack. The state charged international investors and domestic businessmen in court for underpaying taxes and other violations.

Barrick Gold Corporation, the Canadian mining company that has helped make gold the country’s leading export commodity, received a notice claiming it owed US$190 billion in fines and unpaid taxes. Many of these cases resulted in negotiated settlements and revisions in the terms of their contracts. Barrick ended up settling by paying US$300 million and increasing the government’s stake in their operations to 50 per cent.

Some 50 per cent of Kenya’s population is below the poverty line in contrast to 33 per cent in Tanzania, which also performs better in several categories of social development.

Both of these campaigns, and Magufuli’s rejection of China’s debt diplomacy and IMF loans, enhanced the President’s reputation as the “Bulldozer”, but did little to effect the structural changes needed. Tundu Lissu, the head of Tanzania’s main opposition party, reported that many of the settlements were actually shakedowns initiated by the President’s CCM faction. Such behind the scenes venality accounts for Magufuli’s silencing of Tanzania’s media and the intensified persecution of the opposition during last year’s national elections.

Sources on the ground report a more complicated picture than the pumped-up legacy conveyed by state media. Although Tanzania joined the ranks of lower middle-income societies in 2020, the improved household income generated by the pro-market policies enacted by Magufuli’s predecessors is being eroded by the rising cost of living, while demographic growth is increasing pressure on the country’s land and natural resources.

Presidential activism failed to arrest the downward drift of conditions across Tanzania’s rural areas. Magufuli’s opposition to international capital limited smallholder access to the contract-farming arrangements that have enabled Kenya’s small-scale producers’ participation in global supply chains. While the benefits of contract farming are contested in academic circles, participation in out-grower schemes has led to improvement in producer terms in a number of cases, and improved access to inputs while diversifying livelihood options for many rural households.

The revival of the East African Community in 2010 was boosting both countries’ commodity exports to each other until tit-for-tat border disputes contributed to a drop to pre-2010 levels. Bilateral trade is a sub-set of the policy frame promoting regional integration, which has in turn triggered a scramble to upgrade the infrastructure facilitating trans-national linkages. This brings us to the governments’ penchant for mega-projects like Kenya’s grandiose Lamu Port-South Sudan-Ethiopia-Transport corridor project (LAPSSET) and Tanzania’s Southern Agricultural Growth Corridor (SAGCOT).

LAPSSET came to be viewed as a cash cow for Kenya’s state-based cartels before it stalled due to the withdrawal of once enthusiastic international investors. Analysis of the SAGCOT corridor indicates it has generated mainly just-for-show benefits while facilitating the entrance of large-scale agribusiness actors at the expense of local smallholder communities. Both countries are beneficiaries of economically dysfunctional Chinese railroads, contrasting monuments to that country’s contribution to regional linkages over the years.

Even in the presence of more comprehensive analyses of the two countries’ development, it is difficult to arrive at definitive conclusions about the efficacy of the Kenya and Tanzania models. They are more connected — Kenya-based companies are the second largest source of foreign investment in Tanzania — than at independence, yet seem even farther apart now with respect to their political sensibilities.

Local folk models provide more succinct perceptions of the differences. Talk to Kenyans and they will characterise Tanzanians as laid back, loquacious, and xenophobic; talk to Tanzanians and they will tell you their neighbors are arrogant, aggressive, and hopelessly tribal. But if you pursue the conversation further, most will show that they understand their neighbours better than formal analyses like the one above convey. Informants on each side of the border will probably concede that their governments have become dog-eat-man regimes.

Political theatre and executive revisionism

Is Magufuli’s hyper-nationalism at odds with Kenya’s constitutionally mandated federalism? In reality, each of these shifts from the previous status quo have been manipulated to reinforce the two states’ tradition of top-down governance. Both governments face an ongoing crisis of constitutionalism, and both have resorted to elaborate exercises of political theatre to camouflage their respective political elites’ strategies to remain at the top of the food chain.

Kenya’s Building Bridges Initiative began with the handshake marking the reconciliation between Uhuru Kenyatta and Raila Odinga, then morphed into a comprehensive gambit to revise the nation’s new constitutional order. Two years later the government released an eloquently worded BBI task force report that was long on promises to fix long-festering problems, but short on how they would be implemented.

Informants on each side of the border will probably concede that their governments have become dog-eat-man regimes.

The provisions to double the seats in the senate, create 80 new parliamentary constituencies, and create positions for a prime minister and four deputy presidents are hard to justify for a country that already expends 48 per cent of its budget on state salaries. Unlike his father, Uhuru Kenyatta is not averse to experimentation. But the circus orchestrated by the BBI’s political beneficiaries has worked to redirect attention away from such inconvenient details.

Since the handshake the Kenyan public has been subjected to an unrelenting procession of media publicity, traveling pep rallies, and tactics used to herd reluctant politicians into the BBI corral. The campaign has been an amped up version of the Moi playbook, featuring theatrics reminiscent of the anti-Nyayo charade the former President used to outmaneuver his opponents during his early days in office.

The rapid deterioration of Magufuli’s health clearly caught his CCM faction by surprise. The media coverage of the President’s elevation from politician to prophet contrasted with the opaque treatment of his last two weeks on earth — or was it actually one week, as the intelligence that he actually passed away on the 10th of March claimed?

The Nabii failed to prophesise his departure from the stage. The roadshow that followed was a skillfully executed event that provided the Bulldozer’s inner circle with the breathing room needed to ring-fence the new President, who receded into the background after her eloquent speech at the funeral. In the meantime, critics were pointing out how the new government’s key appointments violated the process mandated in Tanzania’s constitution.

These games, however cynical, are part of a larger contest being waged across the larger Horn of Africa region, pitting executive power at the centre against distributed governance. Museveni’s Uganda presidency has dynastic ambitions, Rwanda is a developmental dictatorship, and Farmajo wants to restore the same kind of centralised state in Somalia that led to its collapse in 1991. Ahmed Abiy’s ugly war in Tigray is linked to his ambition to reverse the devolution established by the 1994 constitution that declared all sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia.

The strategies to bolster control at the centre that we are witnessing in Kenya and Tanzania may be benign by comparison, but the actions taken to muzzle the press and critics of government policies, along with political impunity, and institutionalised corruption, are not. They differ from the efforts to recentralise the state elsewhere by degree, not in kind.

Reimagining the African state?

The trend is part of a wider global pattern. Since 2017 opposition to heavy-handed governments and their policies has erupted across the world, occurring mainly in authoritarian and authoritarian-leaning states. These surging protests correlate with the reversal of gains in democratisation, respect for human rights, and increased local autonomy across the world.

Liberalisation catalysed a universal movement towards self-determination and the deconcentration of political power. Twenty years ago, scholars were even predicting the end of the nation-state as we know it. In recent years the state has fought back with a vengeance. Recent African developments, for example, reflect the influence of the surveillance state in China that is now challenging the democratic values guiding the post-1945 world order.

There was near-universal belief in the monolithic state at independence, and in the assumption that Africa’s leaders would use its power for the benefit of their populations. By the end of the 1960s these beliefs and assumptions were in tatters. African nations’ largely trial-and-error efforts to balance the nation-building equation since that time still represent the prerogative to adapt the state to the continent’s unique initial conditions.

The unique combination of scholarship, deep historical inquiry, and political imagination that flourished during the post-independence period, at least in theory, remains a useful resource for navigating Africa’s developmental future. The reforms of the post-1989 period come over as dismal and devoid of spirit in comparison, incapable of generating the creativity and passion inspired by the ideas that preceded them.

Tanzania was one of the continent’s leading exemplars of that era’s critical thinking. To his credit, John Pombe Magufuli fought to establish an equitable relationship with international capital while his counterparts in Kenya were drinking the foreign debt Kool-Aid. Theory is useful but trial and error empiricism is the best teacher. We hope that President Samia Suluhu Hassan will use the information generated by the two countries’ contrasting experience to negotiate an adaptive middle path without too much fanfare.

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It Is Time for the Agro-Queer Conversation

It is time to start queering agriculture, and it is time to make sure that no one, be they queer or even differently-abled, is left out of this conversation.

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Kariuki* hustled his way through Nairobi as a personal trainer, masseur and occasionally sold sportswear. Then COVID-19 happened. His income stream went down to zero. He got tired of begging friends and former clients for 500 bob here, a thousand bob there, decided to sell off what he could and went back to his parent’s farm in the country’s central region. This young, handsome, muscle-in-all-the-right-places, rangi ya chocolate, ambitious gay man, needed to live, and for that, he needed to eat. Nairobi had stopped feeding him. He was one of the many LGBTIQ individuals who found themselves going back to homes that had either forced them out or that they had fled.

Kariuki had left home soon after university and since then visits to shags were to his grandmother with whom he had a strong relationship. But it was not home. To be accepted back he had to renounce his gay ways, which he did. Kariuki was put through a traditional cleansing ceremony to chase the gay away, after which the “prodigal” was welcomed back to the fold. His parents gave him an acre of land and promised him another five if he stayed on the straight and narrow. Every pun is intended.

Kariuki started poultry farming, and he was surprised at how well he took to it; he started seeing a future for himself back on the land. Unbeknown to his parents, Kariuki is still actively living his gay life. He acknowledges that if going back into the closet and being on the “down-low” was what he needed to do keep hunger at bay and get him back his inheritance, so be it. I now had a gay friend who was a poultry farmer.

You see, I had resigned myself to believing that agriculture wasn’t really for us. Us being queer people, and I bet I’m not alone in thinking like this. Many queer individuals don’t see a future for themselves in agriculture. It is not within reach of our imagination. Young queer folk find security, freedom, opportunity, visibility and invisibility in urban settings. Plus, there is also greater access to health services that target LGBTIQ people and, more than anything, there is access to our community. Agriculture, the mainstay of our Kenyan economy, isn’t within our rainbow reality. Yet, it can be.

Kariuki was put through a traditional cleansing ceremony to chase the gay away, after which the “prodigal” was welcomed back to the fold.

Kariuki was “lucky” that he could go back home, and that there was farmland that he could access.  Plus, he was “not so obviously gay”. But what if how you present yourself in public doesn’t fit in the box that family or society wants you in? Are you still able to easily access services without fear of discrimination? Are you able to access land or even food without having to look over your shoulder?

Over the past year, the COVID-19 pandemic has upturned Kenya and the world. A friend of mine opted to move back to her rural area when the initial restrictions were announced. The reason for this migration was that she was unsure she’d be able to provide food for her children in a town that she had no affiliation to, where she had no kin she could turn to in case she was too broke to buy food or if there were any food shortages.

The song Mzee Kasema Rudi Mashambani by Equator Sounds came out during Jomo Kenyatta’s presidency and was a rallying call for Kenyans to go back to tilling the land. Many years later, this land, which is such an emotive and sensitive subject in Kenya, is not equitably accessible to Kenyans. And if you have come out publicly as queer, then access to this land becomes even more complicated if you want it. Turudi wapi, kama tumefukuzwa? 

Wanja Mugongo has always loved farming. Her mother, who was the principal’s secretary at a Nyeri college, seeded that love for the soil.  Mugongo’s mother was allowed to farm on the college land, and this supplemented her meagre earnings. She supplied the college with maize, potatoes, carrots and cabbages. Mama Wanja banked on land and therefore invested in it whenever she could. Wanja inherited this astute perspective, and despite the many years spent in LGBTIQ activism, she never forgot that she had green fingers and never lost her love for the soil.

“Farming was my place of joy, and I knew that was what I wanted to do when I was out of employment. I didn’t want to retire and then farm for a living; I wanted to retire and farm for pleasure,” she states.

Mugongo was fortunate that she did not have to go to bank for a loan, that the land was hers. As I researched this article, I came across a number of LGBTIQ farmers who have accessed family land only because they have buried their sexuality.

Apollo* is married with children and lives in Bondo, Siaya County. He is an activist and farmer. The activist side of his life is only known to those who need to know. Apollo recognises that he would have been disinherited had he gone public about his sexuality. He informs me of a young man who has kicked off the family land after the family discovered he was gay. This young man was fortunate that a relative was kind enough to give him a small patch on which to build a house for himself, but he was denied his right to the family land.  Apollo is grateful that he was spared such an ordeal.

“You know, for some of us, this is the life we have chosen for ourselves and it is how things are done here for many of us. Things would have been very different for us,” says Apollo. “Very different” in this case probably means poor, landless, ostracised and maybe banished.

Wichlum Beach on the Kenyan shores of Lake Victoria is home to the Light Youth Group (LYG). The group works with members of the LGBTIQ community in that area. It has 15 members, but within its sphere of operation, it reaches close to 300 Men who have Sex with Men (MSM). Many bisexual and gay individuals are also affiliated to the group.

Economic empowerment is one of LYG’s thematic areas, and being in a rural setting, the group is using agriculture and fishing to improve the economic status of its members. . The group is trying to lease three acres of land for farming activities; they were evicted from the land on which they were carrying out their activities when the owner discovered that LYG was a queer organisation. Once beaten twice shy, so this time round, LYG has come out clean with the prospective landlady who, fortunately, is not prejudiced against the community. Accessing capital to pay for the new piece of land is the next hurdle they need to overcome.  Expectations are high, but patience is needed.

Each member of the group is allocated a 50m by 60m plot of land on which to grow horticultural produce — sukuma wiki (collard greens), cabbages, onions, watermelons, etc. — which is sold to the surrounding community. By selling to the community, the group hopes to build bridges and expects that the local residents will see them as active members of the society. The project’s beneficiaries are drawn from both within and outside the Wichlum area; many have been disowned by their families because of their sexuality. The project offers an opportunity to a marginalised group of people who would otherwise have no access to land nor means to some form of livelihood.

Odhiambo* says he became a farmer by accident and has been farming in Ukwala, Siaya County, for the last three years on family land that he inherited after his mother passed away.  He says he is lucky as he and his siblings have a “your life is your business” approach to life and so Odhiambo, who is in his early 40s, doesn’t have to justify his unmarried status. His neighbours have tried to pressure him into settling down, but he informs me that he has warned them against meddling in his business.

“If my late mother didn’t pressurise me into getting married, who are they?” he asks rhetorically. “I’ve managed to build a life for myself here, and my business should be the least of their concern.”

American civil rights activist, the late Dr Martin Luther King III, states, “Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home.” Unfortunately, many individuals have to keep their sexual orientation private just to access their birthright. But we as a nation should strive to ensure that one’s tribe, gender, sexual orientation, politics or faith is not an impediment to accessing the fruits of this land. It is a right enshrined in our Constitution that we as queer Kenyans should demand.

The country’s agricultural sector is the backbone of the economy, contributing approximately 33 per cent of Kenya’s GDP and employing more than 40 per cent of the total population and 70 per cent of the rural population. By shutting out queer individuals from the farms, fields, lakes, rivers and the sea, we deny the country more food, income, taxes, producers, employers and investors.

In 2020, the Mombasa-based LBGTIQ group, PEMA Kenya, gave over 100 of its members who live in various neighbourhoods within and around the city, training in poultry farming to enhance food security and provide them with skills to earn an income. Such schemes, if successful, could be a way of better integrating queer folk into their communities and creating safe and queer-friendly spaces in which to live. Another group in Kitengela has opted to go back to the soil to produce healthy food for its members living with HIV/AIDS. This approach to ensuring food security and nutrition for vulnerable groups is innovative, practical and has impact.

“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home.”

Urban farming should be supported as it could be a source of livelihood for the many young people who find themselves in the big cities and towns. And although access to land in urban areas comes at a premium or with terms and conditions that are difficult to comply with, urban gardening does not require vast amounts of space. Sack gardens can produce leafy greens like sukuma wiki, spinach, and traditional vegetables on as little as one square metre. There are lessons to be learnt from organisations like PEMA and what they are doing in building a pool of queer poultry farmers in urban areas. Their members can reap the benefits of both worlds — access to urban energies and to their chosen family, and the advantages of being food producers.

“Farming is not a get-rich-quick way of making money. If you have money pressures, it is hard to get into farming,” cautions Mugongo. “If you don’t know the soil, you will need time to understand the soil and its ways. You need time and money. Are queer people even considered bankable?”

Access to credit or capital is a huge deterrent for many queer individuals who would like to go into business or agriculture. Emerging Marginalized Communities (EMAC-Kenya) has established a system for its members that gets around the credit and capital hurdle. The organisation has set up a poultry farming facility and a greenhouse on the grounds of their offices, roughly the size of three-quarters of a football pitch. This pilot agri-business project supports seven queer men and two commercial sex workers who buy the produce on credit, for resale to consumers. EMAC-Kenya recoups its funds by deducting a specific amount when a member buys new stock from them. The organisation’s director informed me that the long-term goal is to create agri-businesses that can offer employment opportunities for other queer individuals; learning of this vision warmed my heart.

Bringing agriculture within reach of the imagination of queer youth might help prevent them from adopting precarious ways of earning a living. The queer community needs to be brought into the agricultural conversation and ways need to be found to support minority groups to earn a living within this sector that the country relies so heavily on.

There need to be discussions on how to make the sector more diverse, inclusive and innovative. Being a farmer, animal breeder, fisherman, rancher should be seen as a career option and not as a Plan D, to be adopted after all else has failed. Mugongo notes that the agricultural sector needs to be drastically transformed, and perceptions on agriculture need to change to make the sector attractive and within reach of the imagination of all youth, not just queer youth.

Unfortunately, there are those within the LGBTIQ community who dropped out of school or completed high school with poor grades. They have few employable skills, and when they do have them, the sectors in which they can work safely and freely are limited. The hustle is real, very real for them. The hospitality sector, entertainment, retail, personal care and grooming — the sectors in which many queer individuals have found work — have been severely impacted by the pandemic. If you don’t work, you can’t afford to eat, and many have been struggling to eat.

The one key attribute we must first remember about queer Kenyans is that we are Kenyans too. The fight for queer rights in the country is about giving us the same access as other Kenyans to the constitutional rights that are promised to us all as citizens of this land. This land that we prize so much that we have even killed one another over, that we go to whatever lengths to acquire, that feeds us all. This our soil doesn’t know our tribe, gender, faith, sexual orientation or class; all it knows is that it is meant to produce and feed.

It is time to start queering agriculture, and it is time to make sure that no one, be they queer or even differently-abled, is left out of this conversation. There are opportunities galore that we haven’t even begun to explore, and it is time to rejig and rethink a sector that feeds all Kenyans, for there is plenty to be found within our borders.

*Names have been changed.

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Blood on the Tea Leaves: Kenyan Workers Demand Reparations From Unilever

In 2007, tea pluckers on a Unilever plantation were brutally attacked in the midst of ethnical violence triggered by a contested presidential election. As the company failed to protect them despite clear warning signs of impending violence, the victims are now taking it to court to demand reparations

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At least four men armed with machetes and clubs broke into Anne Johnson’s home. They forced her husband and 11-year-old son into the bedroom and kept Anne and her teenage daughters in a separate room. To this day, she doesn’t know for certain if the men who raped her, her husband, and her daughters were her coworkers.  “They spoke the local language,”  Anne testified, but  “they blindfolded us so we could not see who they were.”

By 2007, when the attack took place, Anne and her husband, Makori (their names are pseudonyms to protect the family from retaliation), had lived and worked for more than a decade on a Kenyan tea plantation owned by Unilever, the London-based household-goods giant known for such brands as Lipton Tea, Dove, Axe, Knorr, and Magnum ice cream. In December of that year, hundreds of men from the neighboring town of Kericho would beat, maim, rape, and butcher the plantation’s residents during a week of terror.

The attackers killed at least 11 plantation residents, including Makori, whom they raped and fatally wounded in front of his son, and one of the Johnsons’ daughters. They looted and burned thousands of homes and injured and sexually assaulted an unknown number of people, who were targeted because of their ethnic identity and presumed political affiliation.

A contested presidential election triggered the violence. The candidate favored by Kericho’s local population—and openly backed by many Unilever managers—lost to the politician perceived to have support from minority tribes. The massacre was not confined to the plantation or to Kericho. More than 1,300 people died in post election violence across Kenya.

Unilever said the attacks on its plantation were unexpected and that it therefore should not be held liable. But witnesses and former Unilever managers say the company’s own staff incited and participated in the attacks. They made these allegations in 2016 in written testimony, after the case was submitted to a court in London. Anne and 217 other survivors wanted Unilever Kenya and its corporate parent in the United Kingdom to pay reparations. Among the claimants were 56 women who were raped and the family members of seven people who were killed.

In hundreds of pages of witness testimony and other court records and in interviews I conducted, the survivors describe how, in the run-up to the election, their colleagues threatened to attack them if the « wrong » candidate won. When they reported these comments, their managers dismissed their concerns, issued veiled threats, or made derogatory remarks of their own.

Former managers from Unilever Kenya admitted to the court that the company’s top management, including then-managing director Richard Fairburn, discussed the possibility of election violence in several meetings but only ramped up the security for its senior personnel, factories, and equipment.

Unilever Kenya insists it is not responsible and blames the police for acting too slowly. Meanwhile, its corporate parent in London maintains that it owes the workers nothing and that the victims should sue the company in Kenya, not in the United Kingdom. But the workers say that a lawsuit in Kenya could spark more violence, including from their earlier assailants, some of whom still work at the plantation.

In 2018, a judge in the United Kingdom ruled that Unilever’s London headquarters could not be held liable for the failures of its Kenyan subsidiary. Now, Anne and her former coworkers are looking to the UN Working Group on Business and Human Rights, which is expected to decide, over the next few months, whether Unilever has failed to meet the United Nations’ guidelines for responsible business behavior. As Anne explained to me,  “The company promised they would take care of us, but they didn’t, so now they should pay us so we can finally rebuild our lives.”

Unilever’s hilly tea plantation in Kenya’s southern Rift Valley covered about 13,000 hectares in 2007. With a population then of roughly 100,000 people, including about 20,000 residential workers and their families, and boasting on-site schools, health clinics, and social facilities, the estates are essentially a company town, and a cosmopolitan one: The workers belong to several ethnicities from across the country.

The Johnsons hailed from Kisii, a county two hours away from the Unilever estates, and identify ethnically as Kisii. On the plantation, the Kisiis made up nearly half the residents, but in nearby Kericho—the homeland of an ethnic group called the Kalenjins—they were a much smaller minority. And many people in Kericho looked down on the Kisiis and other  “foreigners.” The plantation reflected this divide: The Kalenjins were mostly managers, and the Kisiis and other minorities worked primarily as tea pluckers.

The couple spent the last Sunday of December 2007 as they did any other day—in the field with a basket on their backs—though they expected the evening to be tense, since the election results would be announced in the late afternoon. Earlier in the week, millions of Kenyans had gone to the polls to elect either Raila Odinga, who led the Orange Democratic Movement (ODM), or Mwai Kibaki, of the Party of National Unity (PNU), as their new president.

Anne hadn’t voted herself. Weeks earlier, she had applied for leave to travel to Kisii, where she was registered to vote, but her manager declined the request, she said. This experience was common among the members of minority tribes, said Daniel Leader, a lawyer and partner at the London law firm Leigh Day, who represented the survivors in court and whose team interviewed all 218 claimants.

The impending elections had exacerbated tensions between Unilever’s Kalenjin workers and their more junior Kisii colleagues.  “They assumed we Kisiis backed Mwai,” Anne explained, whereas the local Kalenjin population were overwhelmingly pro-Odinga.

In the weeks leading up to the election, survivors say ODM-supporting staff turned the tea estates into a fiercely pro-Odinga space, organizing political rallies and strategy meetings on the property. Anne told me that the perception of the Kisiis as Kibaki supporters led some Kalenjins to treat them with hostility. She said that team leaders, for example, began to allocate her job duties to non-Kisii workers. Other coworkers stopped talking to her altogether. To Anne’s distress, she found leaflets with hateful slogans like  “Foreigners go home” in the residential areas, making her worry that  “something bad may happen after the election.”

Anne was frightened but kept quiet.  “The company is so big. I assumed they would protect us,  “she told me. Those who felt less assured and who asked their team leaders and managers for protection were met with indifference, according to survivors. In court testimony, many recalled how various managers ignored their pleas for more security or dismissed them by saying,  “It’s just politics.” Other managers instructed the concerned workers to lobby and vote for Odinga, saying they would be « forced to leave » if they didn’t.

In the weeks leading up to the election, survivors say ODM-supporting staff turned the tea estates into a fiercely pro-Odinga space, organizing political rallies and strategy meetings on the property.

An estate manager admitted to the London court that Unilever Kenya’s senior management—including Fairburn, the managing director—had been aware that « there would be unrest and that the Plantation could be invaded. » They had discussed the need for extra security in at least three meetings in December, he said. But management took measures only to « secure company property, factories, machinery, stores, power stations and management housing, » while « no thought was given to increasing the security of the residential camps in order to protect the workers. » Another former Unilever manager corroborated this claim.

Fairburn, who was allegedly present at them, refused to comment on the meetings when I called him. To this day, Unilever claims that it could not have predicted the attacks, even though the media in Kenya and internationally, including the BBC, Al Jazeera, The New York Times, and Reuters, had reported on the impending ethnic violence.

“Anyone who knew anything about the Kenyan election in 2007 knew it had the potential to end in significant and widespread violence, and that this violence would largely break down along lines of identity and affiliation, » said Tara Van Ho, who teaches law and human rights at the University of Essex. Both Unilever Kenya and its corporate parent in London should have known that the workers and their families were at risk, she continued. To protect them, she argued, Unilever could have hired extra security guards, trained its security personnel and managers, and solidified their buildings or evacuated residents for the period immediately surrounding the election.

Instead, said Leader, the workers’ London attorney, Unilever « created a situation where [these employees] were sitting ducks—at risk because of their ethnicity. “

Meanwhile, Unilever Kenya’s managing director and other executives went on holiday before the crisis, according to the former managers, and the company evacuated the remaining managers and expats on private jets once the violence broke out.

When the news of Kibaki’s victory came on Sunday evening, Anne was preparing supper with her family. Moments later, she heard people screaming outside and knew they were in danger. « We quickly locked our doors, » she said.

That night, hundreds of men armed with machetes, clubs, kerosene jars, and other weapons invaded the plantation. They looted and burned thousands of Kisii homes—which they marked with an X—and attacked their inhabitants.

Court records paint a harrowing picture of what unfolded on the plantation over the next week. People were gang-raped and viciously beaten and saw their coworkers set on fire. When they fled for safety to the tea bushes, the attackers pursued them with dogs.

“We do not know the total number of people who were raped, killed, and permanently disabled, » Leader told me. He thinks the 218 claimants he represented are not the only surviving victims. « Many people are too scared of retribution or renewed attacks from colleagues who they continue to work alongside of,” he said.

Concern about violent reprisals was one reason the survivors wanted to sue Unilever in the United Kingdom. Another was that Leigh Day represented them for free, whereas in Kenya the survivors would not be able to afford legal counsel.

Leigh Day argued that their Kenyan clients had a right to sue Unilever in London, since UK law allows workers from international subsidiaries to sue the UK-based parent companies if, among other things, they can show that the corporate parent plays an active and controlling role in the subsidiary’s day-to-day management. Unilever, Leigh Day argued, clearly did.

Unilever’s lawyers nonetheless insisted that the victims should file their case in Kenya and suggested the tea pluckers  “band together” and  “raise funds from friends and family.”

Multiple victims said they recognized their attackers as Unilever colleagues. One woman told the court she was “started beating me with a metal rod on my back and on my legs and were going to rape me,” she stated in witness testimony, until  “a Kalenjin neighbor who was a male nurse intervened to stop the attack.”

In court, Unilever denied that its own staff participated in the attacks. But when I asked Unilever representatives how the company knew this, they declined to comment further on the issue.

After the attackers left, the Johnsons fled and hid for three nights in the tea bushes before making their way to the police station in nearby Koiwa, covered in mud and blood. From there, police officers escorted them to safety, and the family was able to escape to Kisii where they kept a small plot of land. Without savings, they could not afford the hospital costs for either their eldest daughter, who suffered severe injuries and got weaker by the day, or for Makori, who had internal bleeding. In the months that followed, both of them died in their mud house in Kisii.

Anne said that the only communication she received from Unilever since the attacks was an invitation to return to work months later and a letter offering her about $110 in compensation. The letter suggests that this amount was set and paid for by Unilever’s corporate headquarters in London.

In court, Unilever denied that its own staff participated in the attacks. But when I asked Unilever representatives how the company knew this, they declined to comment further on the issue.

“On behalf of the entire Unilever Tea Kenya Ltd family,” it reads,  “we thank Unilever for their understanding, material and moral support and we hope that this timely gesture will go a long way to bring normalcy back to our employees and their families.”

Anne told me she never returned to the plantation because she can’t leave her son, now in his mid-20s.  “He developed very bad seizures and panic attacks after what happened and needs constant care,”  she said. Severely traumatized and unable to afford the psychological treatment they need, her son and daughter both stopped going to school.  “We live off gifts from relatives and neighbors and the little maize we grow on our land,” she said.

The claimants say that Unilever owes them meaningful reparations, but Unilever insists it has already compensated them. The company’s spokespeople told me that it has paid all of the workers who eventually returned to the plantation with cash and new furniture and has also offered their families free counseling and medical care. But they won’t say how much the company gave them or comment on the letter that Anne shared with me.

In the summer of 2018, Anne and a group of other victims rebutted these claims in a letter to Paul Polman, the company’s CEO at the time:  “It’s not right that Unilever has said it helped us when we know that is not true,” the letter stated. It continued:

Unilever just wanted us to go back to work as if nothing happened [and those of us who did] were told we must not talk about what happened. We are still scared that we will be punished if we speak about the violence.

Unilever says that after the violence every employee was given  “compensation in kind” to offset our lost wages and that we were given replacement items or cash to buy new items to replace our stolen property…but those who were too afraid to return got nothing and only some of those who returned were given KES12,000 [$110], a little more than a month salary, and a little maize, which was then deducted from our salary. We were told that if we saw people with our belongings we should say nothing.

Polman appears not to have responded to the letter.

Under UK law, a parent company can only be held liable for the health and safety breaches of its subsidiaries if it exercises a high degree of control over their safety and crisis management policies.

To prove to the court that the UK parent company did indeed exercise such control over Unilever Kenya, Leigh Day submitted witness statements from former workers, who testified to the frequent visits made by London managers, and from four former managers, who gave evidence that the head office shaped, supervised, and audited the safety and crisis management policies of Unilever Kenya and even made its own safety protocols compulsory. This meant that, as one senior manager with over 15 years of experience with the company put it, Unilever Kenya was « confined to strictly complying with the policies and procedures which had been cascaded down by [Unilever] Plc.  “Another senior manager stated that London’s « checklists and detailed policies had to be complied with or an employee would be dismissed or face some other sanction.”

These testimonies seemed to support Leigh Day’s claim that the London headquarters shared liability. Yet to prove it to the court, the law firm needed access to the actual text of the protocols that the managers described. However, since these were pretrial proceedings—meaning that the court had not accepted jurisdiction—Unilever had no duty to disclose relevant materials and simply refused to hand over the documents.

Under UK law, a parent company can only be held liable for the health and safety breaches of its subsidiaries if it exercises a high degree of control over their safety and crisis management policies.

The judge’s ruling made clear that the  “weakness” of their evidence played a major role in her decision to deny the Kenyans jurisdiction. Human rights scholars and corporate accountability advocates condemned the ruling. The court had created a catch-22 for the workers, Van Ho observed:  “The claimants couldn’t get the documents that showed Unilever UK did something wrong until they had the documents that showed Unilever UK did something wrong.”  It’s  “dizzying,”  she said, and  “an unfair expectation for employees who have a lot less power than the multibillion-dollar company that employed them.”

Anne said she remains hopeful that international human rights advocates will support her cause. With other victims, she recently filed a complaint against Unilever at the United Nations, arguing that the company violated the UN Guiding Principles for Business and Human Rights. One requirement is that companies must ensure that victims of human rights abuses in their supply chain have access to remediation. Van Ho anticipates that the UN body, which is expected to reach a decision soon, will agree that Unilever breached these guidelines.  “Hiding behind legal loopholes and refusing to disclose relevant information to avoid paying reparations is the exact opposite of what the Guiding Principles prescribe,” she said.

Though the United Nations can’t force Unilever to pay up, Anne hopes the case will generate the attention and public pressure necessary to push the company in that direction. When asked what it would mean to her if the workers succeed, she told me,  “It would be the greatest moment in my life.”

Editors Note: This is an edited version of an article first published by The Nation. It is republished here as part of our partnership with Progressive international. 

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